Buffalo Environmental Law Journal Volume 17 Number 1 Issue 1-2 Article 1 1-1-2010 "Sighting" Wind Energy Facilities in Vermont: Finding the Right Balance between Societal Benefits and Aesthetic Burden Adam Sherwin Follow this and additional works at: https://digitalcommons.law.buffalo.edu/belj Part of the Energy and Utilities Law Commons, and the Land Use Law Commons Recommended Citation Adam Sherwin, "Sighting" Wind Energy Facilities in Vermont: Finding the Right Balance between Societal Benefits and Aesthetic Burden, 17 Buff. Envtl. L.J. 1 (2009-2010). Available at: https://digitalcommons.law.buffalo.edu/belj/vol17/iss1/1 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Environmental Law Journal by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. "SIGHTING" WIND ENERGY FACILITIES IN VERMONT: FINDING THE RIGHT BALANCE BETWEEN SOCIETAL BENEFITS AND AESTHETIC BURDEN Adam Sherwin* Table of Contents I. INTRODUCTION ......................................... 3 II. AESTHETICS UNDER ACT 250........................5 A. History of Act 250...................5........... 5 B. Act 250 Process.....................................6 C. Quechee Test for Criterion Eight ....................... 7 D. Adverse Impact ...................... 8...........8 E. Undue Burden.......................................9 III. CERTIFICATE OF PUBLIC GOOD REVIEW BY PUBLIC SERVICE BOARD .................. ............................. IV. RELATIONSHIP BETWEEN ACT 250 AND SECTION 248 .......... 12 V. CASE STUDIES ........................................ 17 A. Seasburg..........................................17 i. Overview.........................................17 ii. Analysis.........................................18 B. Sheffield....................... ............ 20 i. Overview..................................20 ii. Analysis..................................23 C. East Haven..................................23 i. Overview. ........................................ 23 ii. Analysis. ......................................... 25 VI. PUBLIC OPINION AND WIND FACILITIES IN VERMONT...........26 VII. WIND FACILITIES AND AESTHETICS IN OTHER JURISDICTIONS ........................................ 28 J.D. 2010 cum laude, Vermont Law School. The author wishes to extend his gratitude to the Vermont Law School faculty and The Vermont Journal of Environmental Law for their encouragement and guidance, and to his family for their constant support. 2 BUFFALO ENVIRONMENTAL LAW JOURNAL [Vol. 17 VIII. IMPROVING THE AESTHETICS REVIEW OF WIND FACILITIES.. 34 A. "Strict Scrutiny" Under Adverse Impact ... ............. 35 B. Modifying the Undue Burden Analysis ................. 35 IX. CONCLUSION ............................................. 40 2009-2010]1 "SIGHTING" WIND ENERGY 3 I. INTRODUCTION Vermont is a state with strong environmental traditions. Known as the "Green Mountain State," Vermont has taken an active role in protecting its landscape, wildlife, and natural resources. One of the state's most unique environmental protections is the Land Use and Development Law, commonly known as "Act 250." A requirement for a variety of different development projects,' Act 250 consists of ten criteria that must be satisfied in order for a permit to be approved. 2 These criteria include more than just con- cerns over pollution and depletion of natural resources, but also consider the development's impact on the surrounding community. 3 Example criteria include: "undue water or air pollution"4 and soil erosion, 5 undesirable effects on the water supply, 6 unreasonable traffic congestion, unreasonable burden on education, municipal or government services,9 and conformance with local and regional plans.'0 Of these criteria, criterion eight is one of the most controversial, part of which requires that the development does not have an adverse effect on the aesthetics of the scenic or natural beauty of the area.' Criterion eight has been an important part of 'VT. STAT. ANN. tit. 10, § 6001(3)(A) (2009). 2 Id. § 6086(a). 3 See id. § 6086(a)(5) (development cannot "cause unreasonable congestion or unsafe conditions with respect to use of the highways, waterways, railways, airports and airways, and other means of transportation existing or proposed"); id § 6086(a)(6) (development cannot "cause an unreasonable burden on the ability of a municipality to provide educational services"); id § 6086(a)(7) (development cannot "place an unreasonable burden on the ability of the local governments to provide municipal or governmental services"). 4 Id. § 6086(a)(1). 5 Id. § 6086(a)(4). 6 tit. 10 § 6086(a)(2)-(3). 7 Id. § 6086(a)(5). 8 Id. § 6086(a)(6). 9 Id. § 6086(a)(7). 10Id. § 6086(a)(9)-(10). " Id. § 6086(a)(8) ("Will not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas."). 4 BUFFALO ENVIRONMENTAL LAW JOURNAL [Vol. 17 challenges to a wide variety of development projects, including shopping centers, retail stores, and ski resorts in Vermont.12 Recently, aesthetic concerns have surfaced regarding the develop- ment of wind farms on mountain ridgelines throughout the state.' 3 These projects are reviewed by the Public Service Board, and the law for granting a certificate of public good requires the board to consider aesthetics by giving due consideration to criterion eight of Act 250.14 The controversy over the aesthetics of wind farms, along with advocacy for its role in the state's energy plan,' 5 raises questions over the Public Service Board's review of these projects. While criterion eight has been used for different development projects throughout the state, commercial wind projects present a unique set of challenges in considering aesthetics of wind arms. 16 These concerns raise the question over the effectiveness of the Public Service Board's aesthetic analysis, as compared to criterion eight of Act 250. Given the unique characteristics of these projects and the benefits they provide for the state, Section 248's aesthetic consideration should be modified and permit the construction of commercial wind energy projects. This note will provide a review of aesthetics in light of current issues concerning wind farms. Part I entails an overview of aesthetics under Act 250, including a history and summary of the permit process, and the standards used to review projects under criterion eight. Part II discusses the Public Service Board's process for approving electric generation facilities. Part III examines the relationship between Act 250 and Section 248, and Part IV discusses case studies of commercial wind projects around the 12 See James Murphy, Vermont's Act 250 and the Problem ofSprawl, 9 ALB. L. ENVTL. OUTLOOK 205, 218-31 (2004) (discussing the review of different development projects under Act 250). " Editorial,Northeast Kingdom lawmakers test wind, BURLINGTON FREE PRESS, Feb. 1, 2006, at 10A. 14 VT. STAT. ANN. tit. 30, § 248(b)(5) (2009). 15 See id. § 8001(a) (listing Vermont's renewable energy goals). 16 See Editorial, Caution in the Wind, BURLINGTON FREE PRESS, Sept. 30, 2004, at 10A ("The mission is to investigate whether Section 248 of Vermont's utility laws, enacted in 1969 to deal with generation plants and transmission lines, is adequate to evaluate today's commercial wind proposals."). 2009-2010] "SIGHTING" WIND ENERGY 5 state. Part V discusses public opinion over commercial wind projects in Vermont. Part VI looks at how other countries and states handle aesthetic issues for wind projects, and Part VII offers a review of Section 248's aesthetic analysis and suggestions for improving this process. II. AESTHETICS UNDER ACT 250 A. History of Act 250 Vermont passed Act 250 at a time when the state was undergoing drastic population change.1 7 After 1960, Vermont's population grew rapidly, and for the first time since the 1800s, substantially more people were moving into the state than were moving out.18 These changes have been attributed to a number of factors, including the building of the interstate highway, and changes in the economy and political landscape.19 Until the late 1960s, Vermont traditionally allowed land- owners to do whatever they wished with their own property. 20 Most of the projects done on private property were small and of little concern to others,21 however, as Vermont's population grew, developers saw opportunities to profit in the state, and in turn began to pursue large development projects.22 Many citizens grew concerned that this development threatened Vermont's natural beauty, and called for legislative action.23 In 1969, Vermont passed Act 250. The success of the legislation was in large part due to Governor Deane Davis, who organized a conference to design the bill and actively supported its 17 CHRISTOPHER MCGRORY KLYZA & STEPHEN C. TROMBULAK, THE STORY OF VERMONT: A NATURAL AND CULTURAL HISTORY 115-16 (Univ. Press of New Eng. 1999). s Id. at 116. 19 Id. at 119-21. 20 JOE SHERMAN, FAST LANE ON A DIRT ROAD: A CONTEMPORARY HISTORY OF VERMONT 88 (Chelsea Green Publ'g Co. 1991). 21 Id. at 88. 22 SHERMAN, supra note 20, at 88-89. 23 SHERMAN, supranote 20, at 89. 6 BUFFALO ENVIRONMENTAL LAW JOURNAL [Vol. 17 passage.24 Originally, the bill contained two parts: a permit process and a state-land use plan.25 The permit process passed the State Senate and made up the